NAMI Submits Comments On Social Security's Ticket To Work Regulations

NAMI has recently submitted extensive comments on the Social Security Administration's proposed regulations for a major provision of the Ticket to Work and Work Incentives Improvement Act (TWWIA) - the new "ticket to independence" program. Among the important issues addressed in these comments are the ability of SSI and SSDI beneficiaries to access the ticket program, special concerns for beneficiaries classified as "Disabled Adult Children" (DACs), and the ability of innovative programs such as clubhouses to participate as employment networks. For more information on SSA's draft regulations on the ticket program, see NAMI E-News, Vol. 01-59, December 28, 2000 at http://www2.nami.org/update/001228.html

On behalf of the 210,000 members and 1,200 affiliates of the National Alliance for the Mentally Ill (NAMI), I am pleased to submit the following comments on the Social Security Administration's Notice of Proposed Rulemaking (NPRM) on the Ticket to Work and Work Incentives Improvement Act (TWWIIA, P.L. 106-170). As the nation's largest organization representing people with severe mental illnesses and their families, NAMI places the highest value on consumers achieving recovery from mental illness. Central to this goal of recovery is the ability to enter and stay in the workforce and move away from a life of poverty and dependence on Social Security's disability programs.

NAMI strongly supported TWWIIA when it was before Congress in 1998 and 1999. As you know, non-elderly adults with severe mental illnesses represent a substantial, and growing, proportion of the Social Security Disability Insurance (SSDI) and the Supplemental Security Income (SSI) rolls. As a consumer and family organization, NAMI knows first-hand the extreme frustration that beneficiaries feel in dealing with programs that place extreme penalties and disincentives on efforts enter the workforce, even for part-time employment. Likewise, NAMI has also been very frustrated by the inability of mainstream job training and vocational programs - including publicly funded vocational rehabilitation agencies - to effectively serve individuals with severe mental illnesses. We are therefore encouraged that TWWIIA marks the beginning a paradigm shift in SSA's programs - away from lifetime dependence on benefits, toward an outcome oriented system of flexible supports that rewards, instead penalizes efforts to work.

Since TWWIA was signed into law on December 17, 1999, NAMI has sought to advocate for a programmatic structure for key provisions in the new law under SSA's jurisdiction (the "ticket" program, continuing disability review protections, etc.) that meets the needs of individuals living with severe mental illness. Specifically, severe mental illnesses are long-term, episodic illnesses for which medical science is developing newer and more effective treatments everyday. Over the past year, NAMI has met with senior SSA officials and testified before TWWIIA Advisory Panel. As part of these efforts, NAMI has urged swift and effective enforcement of the new law in accordance with congressional intent, i.e. to help the maximum number of SSDI and SSI beneficiaries move off the disability rolls and into the workforce.

It is therefore disappointing to NAMI that this NPRM falls far short of this objective. While NAMI's comments on the specifics of the program design of the ticket program are discussed in detail, it is important to note that the overall program appears to be much too restrictive in terms of eligibility and payment structure to be effective in serving the vast numbers of SSDI and SSI beneficiaries with severe mental illnesses. NAMI believes that SSA needs to do much more work to ensure that the ticket program is fair, accessible and effective for people who can and want to work.

Under the current law and administrative practice, once an individual is determined eligible for SSI or SSDI, the state Disability Determination Service (DDS) assigns the person to one of three categories, Medical Improvement Expected (MIE), Medical Improvement Possible (MIP), or Medical Improvement Not Expected (MINE). These categorizations are merely administrative conveniences that determine the frequency of a beneficiary's Continuing Disability Review (CDR). MIEs receive CDRs more frequently than MIPs or MINEs. There are no rules or regulations that determine how a person is assigned to a medical improvement category. The determination is solely based on the discretion of the Disability Determination Service personnel.

In the NPRM, SSA has proposed that people on disability who are determined as Medical Improvement Expected (MIE) be denied a Ticket to Work until after their first CDR. SSA cites the fact that those determined as MIE are expected to medically improve within short period of time and they are subject to CDRs more frequently. SSA argues that to issue a Ticket to these individuals who might be terminated after only a short stay on the roles would: 1) allow these individuals to avoid the CDR and thus allow people who have medically improved to keep benefits they wouldn't ordinarily receive; and 2) allow providers to collect payments from SSA for people who would have returned to work and left the roles anyway.

NAMI Comments

NAMI strongly opposes this unfair and arbitrary restriction on eligibility for a Ticket. At minimum, SSA should examine, on a disability-by-disability basis, which people determined MIE are likely to remain on the roles after the initial CDR and issue those people a Ticket. Further, SSA should examine, on a disability-by-disability basis, which people are likely to come back on the roles even if they are determined to have medically improved in the first CDR, and issue those people a Ticket. If SSA is unable to develop a reasonable listing of disabilities, NAMI believes that the intent of TWWIIA would best be met by making Tickets available to all SSI and SSDI beneficiaries.

Using the broad brush of the MIE category is too crude a tool to deny beneficiaries immediate access to a Ticket. For example, such a rule does not distinguish between a person who is 25 years old and has schizophrenia and is determined MIE, and a person who is 25 years old and has a lower limb fracture and is determined MIE. Almost equal numbers of people with schizophrenia, and people with lower limb fractures are determined MIE. Furthermore, because there are no rules or regulations that govern the DDS's determination of medical improvement, the variations in standards will not only differ from field office to field office, but within field offices. One DDS staffer may place a disproportionately high number of people in the MIE category while another DDS staffer in the same office will place more people in the MIP or MINE category. Consequently, one person with schizophrenia may get an MIE assignment, while another person with the same illness might get an MIP or MINE assignment, all based on who the DDS staffer happens to be.

Also, the GAO has criticized SSA for not incorporating return-to-work efforts earlier in the determination process. Adopting the above comment would bring a more sophisticated and effective approach to SSA's return-to-work program.

2) Ticket Eligibility for Children Under Age 18

In this NPRM, SSA is proposing that children under age 18 not receive a Ticket-to-Work. The agency cites the fact that those under 18 who are on disability must undergo a Disability Review before becoming eligible for benefits after they turn 18. Issuing Tickets to the under 18-age group would possibly lead to issuing Tickets to people who would not qualify for benefits after they turn 18.

NAMI Comments

NAMI strongly opposes this unfair restriction on eligibility for children under age 18. Instead, NAMI would urge that eligibility be opened to all those on disability who are under 18, with a determination by SSA, on a disability-by-disability basis, and determine who is most likely to be eligible for benefits once they turn 18 and issue these individuals a Ticket. Evidence points to the fact that earlier rehabilitation interventions result in better return-to-work outcomes for disabled beneficiaries (GAO Report to Congress, Improving Return-to-Work Efforts, GAO-01-153, Jan, 2001, pg. 13-24). GAO also criticizes SSA for not incorporating Return-to-Work efforts in the eligibility and assessment process. SSA should allow under-18 individuals access to a Ticket, particularly those whose disabilities are likely to result in them continuing on the rolls.

3) One Ticket Per Period of Eligibility

In this NPRM, SSA has proposed that a person can receive only one ticket per period of disability. A "Period of Disability" begins when the person is awarded benefits and ends when the person's entitlement to benefits end.

NAMI Comments

NAMI believes a person should be eligible for another Ticket when the cash value of the first Ticket has been exhausted. The Ticket-to-Work provides payments for up to 60 non-consecutive months of payments to providers for each month during which benefits are not payable to a beneficiary due to earnings. TWWIIA also provides for a 60-month Expedited Reinstatement that follows the termination of benefits due to work. This Expedited Reinstatement provision allows a beneficiary to be automatically reinstated to benefits pending a CDR after six months. SSA may determine that a person who uses the Expedited Reinstatement provision has "continued" the same period of disability, even though their entitlement to benefits has ceased. For SSDI beneficiaries, the Expedited Reinstatement provision allows an individual to come back on the rolls for up to five years after the EPE, under the same "period of disability." In NAMI's view, this provision effectively prevents an individual from getting a new Ticket after the first one is paid out, and means that a person is eligible for only one Ticket in their lifetime.

SSI beneficiaries retain "eligibility" for benefits under 1619(b) even though they are not receiving any cash benefits. The Ticket could be fully paid out in this situation and the person would come back into payment status and not be able to get another Ticket because they are still considered to be in the same "period of disability."

Finally, people with high upfront rehabilitation costs who are served by their state VR agency will have little chance to fully benefit from a Ticket if VR chooses the "cost-reimbursement" method. Under cost reimbursement, VR can get reimbursed for the full costs of services, even if the cost is higher than the total value of the Ticket, as long as a person achieves nine months of SGA. Since nine months of SGA still leaves a person eligible to receive SSI or SSDI, the person will still be on the rolls, not have achieved full independence, and will no longer have access to services because they will not have a Ticket. This would be particularly unjust in the rehabilitation of individuals with severe mental illness, since state VR agencies have generally done a strikingly poor job of tailoring VR programs to the needs of persons with severe mental illness.

4) Issues Affecting Disabled Adult Children (DACs)

This NPRM contains no specific provisions related to the unique needs of DACs, including DACs with severe and persistent mental illness.

NAMI Comments

In NAMI's view, SSA must address issues affecting DACs if the Ticket program is to be successful. Under current law, a DAC who leaves the Title II program as a result of earning above SGA after the extended period of eligibility (EPE) has expired loses "disabled adult child" status for life. The benefits earned by the parent of a DAC (severely disabled since childhood) are then permanently lost. Current law allows no re-entry to DAC status. NAMI strongly believes that this must be corrected as part of TWWIIA implementation. NAMI believes that Congress clearly meant for DACs to move in and out of the program on the same terms and conditions as all other beneficiaries. SSA must ensure that the regulations support this goal.

5) Supported Employment

Under the NPRM, SSA appears to have developed an interpretation regarding the value to be placed on an individual's work effort (whether it exceeds SGA or not) that is different for people in supported employment, depending upon whether the individual is supported directly by an employer, or whether the individual is supported by services from an outside source (e.g., a state-funded supported employment agency).

NAMI Comments

It appears to NAMI that under this NPRM, an individual's work effort could be found to exceed SGA when the support is from a third party, while that same work effort could be found not to exceed SGA when the support is from the employer. From the perspective of the individual, this is an arbitrary distinction. Further, there may be additional complications in that the nature and scope of the support provided to the individual may be misunderstood when making the valuation of work effort. For instance, while the individual may be performing the actual task (bagging groceries, assembling a package, etc.), it may very well be that the individual would be unable to perform the task without the help of the job coach in ensuring that the individual arrives at work on time properly attired, that he/she interacts appropriately with customers and co-workers, and that he/she remains focused on the assigned job tasks, among other things. NAMI believes that payments devoted to providing employment support should not be counted in determining the value of the individual's work effort. SSA should remove this arbitrary distinction if work incentives are to be implemented as intended by TWWIIA.

6) Ticket Outcome and Milestone-Outcome Payment Systems

The Ticket program under TWWIIA provides for two payment methods for Employment Networks (ENs), an outcome payment method and a milestone-outcome payment method. According to the law, the outcome payment method shall "provide a schedule of payments to an employment network…for each month…for which benefits are not payable because of work or earnings." The law says that the milestone-outcome method "shall provide one or more milestones that are directed toward the goal of permanent employment."

Payment to an EN would begin the month in which benefits are not payable to the beneficiary, meaning the first month in the SSDI Extended Period of Eligibility that beneficiary earned above SGA ($740 in 2001). The amount of that monthly payment would be $277 and for each month during the next 60 (not necessarily consecutive) months an individual did not receive benefits the EN would receive $277. In 2000, the total amount an EN could get under this method is $16,620.

b) Outcome Payments for SSI Beneficiaries--

Payment would begin the month in which benefits are not payable, meaning the first month earnings completely offset their benefits under the SSI $2-for-$1 cash offset. On average this means an SSI beneficiary would have to earn more than $1000 a month before any outcome payments would be paid, compared to $740 in earnings for an SSDI beneficiary. In 2000, the total amount an EN could get under this method is $10,560.

Two milestone payments have been proposed. The first payment of $470 is paid when the individual has achieved 3 months of earnings above SGA within a 12-month period, and the second milestone payment of $940 is paid when the beneficiary achieves the 7th month of earnings above SGA in a 12-month period. The 3 months from the first milestone can be part of the 7 months used to reach the second milestone. The total milestone payments are $1,410 and the combined total milestone-outcome amount an EN could get under this method in 2000 is $14,127.

b) Milestone-Outcome Payments for SSI Beneficiaries--

The milestones will be reached the same way as with SSDI. The first milestone of $300 is paid after 3 months of earnings above SGA in a 12-month period, and the second milestone of $600 is paid after 7 months of earnings above SGA in a 12-month period. The total amount of milestone payments is $900 and the combined milestone-outcome amount an EN could get in 2000 is $8,976.

NAMI Comments

NAMI strongly recommends that the payment disparity between the Outcome and Milestone-Outcome systems be eliminated except for a minor reduction in the Milestone system in order to comply with the law. NAMI further recommends that the outcome payments in the Milestone system be spread evenly over the five-year period. The huge disparity between the total payments in the Outcome system vs. those in the Milestone-Outcome system will discourage the use of the Milestone system. While the law says the Milestone payment system must be less than the Outcome system, the 15% reduction proposed by SSA is too great to attract smaller providers. Worse, back loading the outcome payments in the milestone system means that monthly outcome payments in the first year are 3 times lower than those in the fifth year. Again, this discourages smaller, less well-capitalized providers from participating.

NAMI is also very concerned that that the value of the milestone payments are far below what is necessary to ensure that providers are able and willing to serve Ticket holders with severe mental illnesses. NAMI recommends instead that SSA adopt the milestone payment structure developed by our colleagues at the International Association for Psychosocial Rehabilitation Services (IAPSRS):

- If an individual enters their EPE before all the milestones are paid out, the remainder amount of milestones are folded into the outcome payments.

In NAMI's view, the value of the milestone payments are far too low to ensure that individuals with severe mental illnesses are able to use the program. Several states in SSA's State Partnership Initiative (SPI) Program have run demonstrations on milestones, the most prominent being Oklahoma. In Oklahoma and in the other SPI states, experience tells us that a total milestone system that pays less than $3,500 will not attract providers. Ideally, to attract the maximum number of providers, the total milestone payment should be between $4,000 and $5,000 for SSDI and concurrent SSDI/SSI.

The milestone system was devised by Congress as a method of risk sharing between SSA and providers. Under this NPRM, SSA shares no risk, all the risk is on the provider. Further, requiring an individual work at, or above, SGA in order for a milestone payment to occur is an inappropriate standard. If an individual has used up most or all of their Trial Work Period (TWP) under the SSDI program before depositing their Ticket, the milestone system will have no impact at all, because as soon as the individual earns above SGA, the outcome payments will start. Such cases will create confusing and conflicting circumstances for Ticket holders and ENs: will ENs lose the amount contained in the milestones? Will the milestones be folded into the Outcome payments? will ENs be paid the milestone payments first (thereby receiving a lesser amount than the Outcome payments would have generated under the same circumstances, before receiving the Outcome payments)?

The implications of the milestone-outcome payment system for SSI beneficiaries is even more troubling. Specifically, the NPRM appears to have made no effort to take into account the existing work incentives structure under SSI. In NAMI's view, SSA needs to restructure the milestone-outcome system for SSI beneficiaries in order to allow outcome payments when the earnings of an SSI beneficiary partially reduces their SSI check because of earnings or income. The amount paid would still be based on the maximum of 40% of the portion of the benefit not paid as dictated by Congress.

Such a proposal might pay a $500 milestone in the first month a SSI beneficiary's work earned over $125 in gross income. A second milestone could be paid in the next month the SSI beneficiary earned over $325 in gross income. In any month after the second milestone was paid that the SSI beneficiary's income was between $326 and $550, SSA could pay an outcome payment of $53. In any month after the second milestone was paid in which the beneficiary's income was between $551 and $750, SSA could pay an outcome payment of $93. In any month that earnings were between $751 and $1002, SSA would pay $138. This is calculated using average federal SSI payment as determined by SSA in calculating the payment calculation base for SSI. The amount of the outcome payment would be paid according to the 40% maximum allowed under the law.

In NAMI's view, it is important to remember that the milestone system was devised by Congress as a method of sharing risk between SSA and providers. However, under this NPRM, SSA shares no risk - all the risk is with the provider. Further, SSA's proposal is discriminatory as applied to SSI beneficiaries because SSA has interpreted the law to require that a person not be receiving ANY cash benefits before an outcome payment is made. SSI beneficiaries are disadvantaged because the $2-for-$1 cash offset under Section 1619 (a work incentive) requires them to earn more ($360 a month more) than those on SSDI before an outcome payment is paid to an EN. As a result, ENs are certain to be discouraged from serving the SSI population, which in the case of individuals with severe mental illnesses is predominantly persons whose onset of illness and disability disrupted education and training opportunities in late childhood or early adolescence (leaving them with more limited work histories, on average, than SSDI beneficiaries).

TWWIIA states that the outcome payment method shall "provide a schedule of payments to an employment network…for each month…for which benefits are not payable because of work or earnings." NAMI believes that if a person on SSI earns enough so that their SSI check is partially reduced, this reduction equals "a benefit that is not payable because of work or earnings." Further, the law does NOT require a total elimination of ALL cash benefits. Had Congress intended this they would have said something such as: "provide a schedule of payments to an employment network…for each month…for which NO benefits are payable because of work or earnings." NAMI believes that Congress created sufficient flexibility to allow for an outcome payment when an SSI beneficiary reduces their SSI check because of work.

7) Continuing Disability Review (CDR) Issues

TWWIA makes clear that "beneficiaries shall not be subject to Continuing Disability Reviews as long as they are using (as defined by the Commissioner) a Ticket-to-Work." SSA has set up a timeline that determines what "using a Ticket" means. After assigning a ticket, beneficiaries are allowed up to 2 years to prepare for employment. They must show they are "actively participating in their Individual Work Plan (IWP) or Individual Plan for Employment (IPE) i.e., engaging in activities outlined in one's plan on a regular and timely basis.

After 2 years, beneficiaries would be required to meet progressively higher levels of employment to continue to be considered "using a ticket" in order to receive protection regarding non-initiation of continuing disability reviews. In the 3rd year of participation in the Ticket to Work program, beneficiaries would be required to work at least 3 (not necessarily consecutive) months in a 12-month period at the Substantial Gainful Activity (SGA) level (currently set at $740 for non-blind beneficiaries). In the 4th year of participation in the program, the beneficiary would be required to work at least 6 (not necessarily consecutive) months during a 12-month period at the SGA level. In the 5th and succeeding years, in order to be considered to be using a ticket, beneficiaries would be required to work at least 6 (not necessarily consecutive) months in each year and have earnings in each such month that were sufficient to eliminate the payment of SSDI benefits and Federal SSI benefits.

SSA explains that progress toward self-sufficiency is not always continuous and that for some, full self-sufficiency may not be attained. Many beneficiaries have disabilities with cycles of relapse and remission. The requirements for only 3 months out of 12 in the third year and 6 months out of 12 in succeeding years recognizes that some beneficiaries may not be able to work on a continuous basis.

NAMI Comments

NAMI supports allowing beneficiaries to "bank" work months in the first two years to count towards the work requirements in later years. In year 5 and beyond, NAMI supports allowing work in excess of the six-month requirement to count toward the next year's requirement. Further, NAMI recommends that increasing amounts of work or earnings, even if below SGA, be evaluated as meeting the definition of "progressively higher levels of employment" in order for a person to keep their CDR protection.

The very nature of severe and persistent mental illness as a disabling condition is that its symptoms are episodic and intermittent. While some people may not be able to work right away, others might be able to work sooner, but may experience difficulties later. In NAMI's view, it is discriminatory to those who can work earlier to penalize them because their work effort did not fall precisely within the stringent timeframe SSA has established in this NPRM. Further, the NPRM appears to ignore the fact that many people may work at increasing levels of income or hours, but never reach the SGA earnings threshold.

8) Employment Network Issues

According to the NPRM, an entity applies by responding to a Request For Proposal (RFP) issued by SSA. The entity must assure that it is qualified to provide employment services, vocational rehabilitation services, or other support services to disabled beneficiaries either directly or through contract or other arrangement. For example, the entity must assure that it is licensed, certified, accredited or registered to provide these services or is able to arrange for other entities to provide these services.

To serve as an employment network, an entity must meet and maintain compliance with both general and specific selection criteria. General selection criteria include (but are not limited to) having systems in place to ensure confidentiality of personal information, physical and program accessibility, the existence of nondiscriminatory policies, practices, and procedures (based on beneficiaries age, gender, race, color, creed, or national origin), having adequate resources to perform activities, and implementing fiscal control and fund accounting procedures. Specific criteria include (but are not limited to) use of qualified staff and providing medical and related health services under the formal supervision of licensed persons. Any entity must have applicable certificates, licenses, or other credentials if state law requires such documentation.

NAMI Comments

NAMI recommends that the broadest discretion be given to ENs regarding how to comply with these requirements. NAMI also recommends that state law not become a barrier to participation by ENs by allowing the Commissioner to suggest alternative means of qualifying if an entity cannot or does not meet state requirements. In addition, NAMI is concerned about the mandate that ENs provide medical and health related services and suggest limiting this provision to those entities that already provide such benefits.

NAMI is concerned that credentialing requirements could exclude smaller or niche providers that serve specific populations. Any credentialing requirement must be broad enough to ensure the inclusion of the fullest array of providers. Recent years have seen the growth of innovative and effective employment and rehabilitation programs serving adults with severe mental illnesses. Psychosocial rehabilitation, clubhouses and consumer-run and peer support programs have brought significant innovation and reform to the mental health field. These programs work as a compliment to, not a substitute for, medical treatment interventions for mental illness. Evidence is growing that they are much more effective in getting and keeping consumers in the workforce.

In NAMI's view, these programs are most effective when they work to provide consumers with the education, training and community supports to help them live with and manage their illness in order to achieve meaningful recovery. Research has demonstrated that these programs work best when engaged as part of an interdisciplinary Program of Assertive Community Treatment (PACT) approach. In such cases, a clubhouse or peer-run psychosocial rehabilitation program is not the direct provider of medical services, but is an equal partner in the PACT team in meeting the consumer's recovery needs. Mandating that ENs provide medical services directly would necessarily limit the ability of innovative programs to serve Ticketholders with severe mental illnesses.

NAMI believes that the Ticket program has great promise to foster these programs and bring about greater consumer choice by paying for outcomes, rather than ineffective services. SSA should not artificially constrain the universe of ENs through outdated bureaucratic rules. Finally, NAMI is also concerned that the NRPM allows states to levy requirements intended to give state VR agencies exclusive domain in determining who is and is not an EN.

9) Reporting Requirements for Employment Networks

The following reporting requirements are placed on entities that wish to participate in the Ticket to Work program as employment networks:

- Report to the Program Manager each time it accepts a ticket for assignment.

- Submit to the Program Manager a copy of each signed individual work plan and copies of amendments thereto.

- Submit to the Program Manager a copy of any agreement the employment network has established with a state VR agency regarding the provision of VR services.

- Report to the Program Manager the specific outcomes achieved consistent with a national model to be prescribed by the SSA.

- Provide a copy of most recent annual report on outcomes to each beneficiary and ensure that copies are available to the public while ensuring confidentiality of personal information.

- Meet financial reporting requirements, such as demonstrating the percentage of the employment network's budget that was spent on serving beneficiaries with tickets (including the amount spent on beneficiaries who return to work and those who do not return to work).

- Collect and record all data required by SSA.

- Adhere to all statutory and regulatory requirements.

Further, the proposed rule requires ENs to report to the PM regarding a beneficiaries earnings and income in order to be eligible for an outcome payment. This includes submitting documentation such as earnings slips or pay stubs, and the SSA Form 821 that is completed by the beneficiary.

NAMI Comments

The income reporting requirements externalize a long-standing problem at SSA--mainly the agency's inability to accurately and expeditiously track earnings and adjust benefits. The income reporting rules require the EN to collect and report information that the EN may not have access to and might violate a beneficiary's privacy if requested by the EN from either the beneficiary or the employer.

10) Overpayments and Employment Networks

As NAMI has argued for years, SSA does not have adequate means to intake and track earnings of beneficiaries who work. Frequently, beneficiaries who work continue to receive disability checks despite the fact that their earnings have made them ineligible for benefits. Further, SSA takes months, usually years, to "catch up" with a beneficiary who should have had their checks stopped. When SSA does catch up with a beneficiary, the person usually owes thousands, and maybe tens of thousands, in overpayments. This creates havoc with a beneficiary who in the course of attempting to work finds themselves financially worse off. SSA ignores this problem despite the impact on individuals. However, with the payment to ENs and the CDR protection now dependent on SSA stopping checks in a timely fashion, this problem has become catastrophic.

NAMI Comments

Although SSA has not proposed a rule on this issue, this matter is critical to the success of the Ticket program. SSA must address this issue. NAMI recommends that an EN's report to the PM on a beneficiary's income and earnings be given by the PM to SSA within 30 days, and if within 60 days of the PM's report to SSA, SSA has failed to appropriately stop or adjust a beneficiary's check, SSA cannot hold the beneficiary liable for overpayments and SSA must make payment to the EN as though the benefit has been adjusted or ceased. Further, SSA must act immediately to reform and improve income-reporting systems, or not hold beneficiaries, or their EN, responsible for the failings of the agency. Further, if ENs must report incomes and earnings to the PM, along with the SSA Form 821, then SSA must have an incentive to prioritize these reports.

Moreover, this NPRM raises two troubling issues regarding what an EN can do if the EN disagrees with a decision by SSA on a payment request. Specifically, Section 411.590(d) reads:

If an appeal by a beneficiary regarding entitlement or eligibility for disability benefits results in a revised determination, our revised determination could affect the EN's payment or result in an adjustment to payments already made to the EN. While the EN cannot appeal our determination about a beneficiary's right to benefits, the EN may furnish any evidence the EN has which may support a change in our determination on the beneficiary's appeal.

In NAMI's view this NPRM appears to subject ENs to overpayments and may require them to reimburse SSA for payments that were improperly made. In NAMI's view, this is an inappropriate shift of responsibility for SSA's own serious and chronic problems with its deficient income reporting and recording systems. Continued overpayments to beneficiaries will remain a serious disincentive to work. Overpayments to ENs may likewise serve as a disincentive for providers to serve as ENs.

However, even more distressing is the encouragement given by SSA to ENs to turn against beneficiaries if the ENs are unsuccessful in disputes with SSA over whether payments are due to the EN. Should an EN lose its dispute with SSA, the only alternative SSA offers is for the EN to submit evidence against the beneficiary in the beneficiary's claim for cash benefits. This approach creates the potential for a serious conflict between the beneficiary and the EN in a contractual arrangement where the beneficiary needs to trust that the EN is working in the beneficiary's best interest in job preparation, placement, and follow-up. Needless to say, beneficiaries and ENs should be expected to present truthful information and evidence to SSA at all times and ENs should be prepared to submit accurate information whenever requested by SSA. However, inclusion of this suggested approach in a section regarding ENs' options in case of an unfavorable decision by SSA creates an adversarial tone and establishes a fissure in the contractual relationship between beneficiaries and ENs at the outset.

11) Evaluation of Employment Networks

The NPRM allows SSA to periodically review the results of the work of each employment network to ensure effective quality assurance in the provision of services to ticket holders. In conducting such reviews, SSA is supposed to solicit and consider the views of the consumers of the EN and the Program Manager (PM) that monitors the EN. Results of these reviews must be made available to the disabled beneficiaries.

NAMI Comments

In NAMI's view, consumer satisfaction measures and the ability to inform Ticket holders of the quality of ENs in their area is critical. Measuring consumer satisfaction through a survey is only one such way to accomplish this goal. NAMI would also urge SSA to examine employment outcomes, including types of placements and income levels of the placements. However, since many ENs will serve only one disability population, NAMI cautions against comparing ENs across disability groups.

12) The Role of Responsibilities of State Vocational Rehabilitation Agencies

Under the NPRM, SSA is proposing that when a beneficiary signs a plan as defined under the Rehabilitation Act (IPE), the beneficiary has automatically assigned their Ticket, regardless of whether the VR agency is an employment network. Further, SSA is proposing that as part of the broad agreement between ENs and State VR agencies, that the agreement must stipulate "the terms and procedures under which the EN will pay the State VR Agency for providing services."

NAMI Comments

NAMI adamantly opposes any requirement for an eligible beneficiary to automatically assign their Ticket to a state VR agency, regardless of whether the VR agency is an EN. NAMI strongly recommends that this unfair provision be struck from the regulations. The hallmark of TWWIIA is consumer choice. Requiring a beneficiary to assign their Ticket to VR, whether they choose to or not, negates that choice. Further, a beneficiary may be eligible for VR benefits without having to assign their Ticket and, in fact the 1998 amendments to the Rehabilitation Act makes clear that SSI and SSDI beneficiaries are "presumptively eligible" for VR benefits. Making a beneficiary use their Ticket when VR might be required under the Rehabilitation Act to serve that individual anyway, denies the use of the Ticket for the beneficiary at a later date. If VR chooses the cost reimbursement system for a higher cost individual, this person would find themselves without a Ticket and still on benefits since VR is only required to show nine months of work above SGA. That is a far lower employment goal than for other ENs.

NAMI also opposes the presumption in the NPRM that VR agencies will be able to use agreements with ENs to seek payments under the Ticket program. In NAMI's view, SSA should not be establishing the terms of the agreement in the regulations. These agreements between VR agencies and ENs should be arrived at openly and freely without one side or the other having the weight of regulation on their side. Stipulating that ENs will be paying VR presumes that this will always be the case. In fact, with many populations it is VR that pays ENs for services. Presuming in the regulation that ENs will be paying VR for services assumes that VR and the Ticket pay for the same services. In fact, they do not. VR's standard to achieve a closure is 90 days of employment, and to collect under the cost reimbursement system is nine months of employment at or above SGA, while ENs under the ticket must wait at least 60 months for their payment.

By contrast, TWWIIA is meant to help pay for long-term supports that VR agencies are unable to pay for. Making ENs pay VR out of the Ticket renders useless that critical role of the Ticket. Finally, it appears to NAMI that this language is nearly identical in its purpose to a provision that was struck from the final version of TWWIIA before it passed the House in October 1999. At that time, staff for the House Ways and Means Committee instructed officials from SSA, the Rehabilitation Services Administration (RSA) and officials representing state VR agencies that this language was inappropriate and ENs should not be required to surrender proceeds from successful outcomes under the Ticket program to state VR programs. It is troubling to NAMI that this language has been resurrected as part of this NPRM.

13) $1 for $2 Demonstration

TWWIIA mandates that SSA initiate a program to test the feasibility of a $1 for $2 cash benefit-earnings offset in the SSDI program.

NAMI Comments

NAMI considers this mandated demonstration program to be a critical part of the law. For many SSDI beneficiaries, the cash cliff in Title II remains a real barrier to work. The demonstration must begin soon if it is to provide useful data to help Congress decide whether the sliding scale offset should be made available to all Title II beneficiaries with disabilities who want to work. There has been some discussion that SSA might test the value of starting the $1 for $2 offset below the SGA level. If so, we urge that such offset be offered to the beneficiary on a voluntary basis. There may be people with disabilities who would voluntarily accept the reduction beginning below SGA as a trade-off for the security of knowing that their benefits would continue and would fluctuate to complement their fluctuating earnings. Otherwise, SSA would be reducing benefits to which people are otherwise entitled under the current law.

NAMI urges SSA to move expeditiously to design and implement this demonstration program. In addition, we urge SSA to consult with experts in the various disability populations to ensure that the demonstration has the capacity to work for the people intended to be served.

Conclusion

NAMI appreciates the opportunity to comment on this important NPRM. We look forward to working with SSA to make improvements in the NPRM to ensure that the ticket program effectively serves people with severe mental illnesses who can and want to work.